Separation of powers

Earlier this week the House Subcommittee on Courts, Commercial and Administrative Law conducted a hearing on the measure, called the "Regulations From the Executive in Need of Scrutiny Act," or the REINS Act. Sally Katzen (pictured), former Administrator of the Office of Information and Regulatory Affairs (OIRA) in the Clinton administration, testified before the House panel, and questioned the measure's usefulness and constitutionality.

Katzen, now a visiting professor at the New York University School of Law, said the REINS Act would "dramatically change the way our laws are implemented by requiring virtually all new major regulations (e.g., those with an annual impact on the economy of $100 million or more) to be affirmatively approved by both Houses of Congress and the President before taking effect. In other words, major regulations would not be effective unless and until they were enacted into law."

Katzen continued, "While the bill is presented as a response to what its supporters see an out-of-control regulatory process at federal agencies, I believe this proposal is subject to some of the same criticisms that they make of agency regulations - namely, it is not well considered, it is not tailored to the problem it is attempting to solve, and it will inevitably have unintended but nonetheless significant adverse effects on the economy and society at large, including fundamentally changing the constitutional structure of our government."

Regarding the alleged out-of-control costs of implementing new regulations, Katzen noted that the Office of Management and Budget (OMB), in its 2010 Report to Congress, found that regulations issued between 1999-2009 cost between $43 and $55 million but produced benefits ranging from "$128 billion to $616 billion." Therefore Katzen maintained that "even if one uses OMB's highest estimate of costs and its lowest estimate of benefits, the regulations issued over the past ten years have produced net benefits of $73 billion to our society." Katzen continued that OMB "issued reports with similar results (benefits greatly exceeding costs) throughout the George W. Bush Administration."

Katzen also said that the REINS measure could undermine the constitutional separation of powers principles. Citing the 1988 Supreme Court opinion, Morrison v. Olson, Katzen noted that the test to determine whether a "statutory scheme" runs afoul of the separation of powers doctrine involves asking whether the scheme is "an attempt by Congress to increase its own powers at the expense of the executive branch."

Katzen continued:

Much of the discussion surrounding H.R. 10 [the REINS Act] suggests that that may be an apt characterization of the sponsors' intent. Another test is whether an act of Congress ‘impermissibly interferes with the President's exercise of his constitutionally appointed function,' which clearly includes the obligation to ‘take care that the laws be faithfully executed.' For over a century, the executive branch has taken care to faithfully execute the laws by, among other things, developing and issuing regulations implementing legislation.

Video of the entire hearing is available here. For an in-depth discussion of the regulatory process, read the ACS Issue Brief, authored by Katzen, "Letting Government Agencies Do What They Were Created To Do."